Kerala High Court Weekly Round-Up: September 11 - September 17, 2023

Navya Benny

18 Sep 2023 4:35 AM GMT

  • Kerala High Court Weekly Round-Up: September 11 - September 17, 2023

    Nominal Index [Citations: 2023 LiveLaw (Ker) 463-487]State of Kerala v. M/s Sathyam Audios and connected matters 2023 LiveLaw (Ker) 463Kerala High Tension and Extra High Tension Industrial Electricity Consumers' Association & Ors. v. Kerala State Electricity Regulatory Commission & Ors. 2023 LiveLaw (Ker) 464Anil Kumar v. State of Kerala 2023 LiveLaw (Ker) 465Ismail Sahib V State...

    Nominal Index [Citations: 2023 LiveLaw (Ker) 463-487]

    State of Kerala v. M/s Sathyam Audios and connected matters 2023 LiveLaw (Ker) 463

    Kerala High Tension and Extra High Tension Industrial Electricity Consumers' Association & Ors. v. Kerala State Electricity Regulatory Commission & Ors. 2023 LiveLaw (Ker) 464

    Anil Kumar v. State of Kerala 2023 LiveLaw (Ker) 465

    Ismail Sahib V State of Kerala 2023 LiveLaw (Ker) 466

    G. Vyasan & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 467

    Vasu v. Narayanan 2023 LiveLaw (Ker) 468

    Sandeep v. State of Kerala  2023 LiveLaw (Ker) 469

    M. Baiju v. The Secretary, Kozhikode Municipal Corporation & Anr. 2023 LiveLaw (Ker) 470

    N.Sarojini Nambramcheri v. Union of India 2023 LiveLaw (Ker) 471

    Vishnu K.B. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 472

    Aneesh v. State of Kerala 2023 LiveLaw (Ker) 473

    Subeesh v. Vichathran 2023 LiveLaw (Ker) 474

    Tony Francis Padiyappuram v. State of Kerala 2023 LiveLaw (Ker) 475

    Theresa Davis v. State of Kerala 2023 LiveLaw (Ker) 476

    R. Sreenath & Anr. v. State of Kerala & Ors. 2023 LiveLaw (Ker) 477

    N.P. Abdul Nazer v. Union Bank of India & Anr. 2023 LiveLaw (Ker) 478

    Gopakumar v. Madhusoodanan Nair 2023 LiveLaw (Ker) 479

    Thomas Daniel v. Enforcement Directorate & Ors. 2023 LiveLaw (Ker) 480

    Karlose v. Stella Lasar & Ors. 2023 LiveLaw (Ker) 481

    Shaik Zakir Ahmed v. Fertilizers and Chemicals Travancore 2023 LiveLaw (Ker) 482

    Anil Kumar v. Sunil Kumar 2023 LiveLaw (Ker) 483

    Hariharan P v. Malabar Devaswom Board & Ors 2023 LiveLaw (Ker) 484

    Unni Mukundan v. State of Kerala 2023 LiveLaw (Ker) 485

    Gokuldas v. Gopalakrishnan 2023 LiveLaw (Ker) 486

    Suo Moto v. State of Kerala 2023 LiveLaw (Ker) 487

    Judgments/Orders This Week 

    KVAT Act | Tax Doesn't Apply To Transfer Of Goods But To Transfer Of 'Right To Use' Goods: Kerala High Court

    Case Title: State of Kerala v. M/s Sathyam Audios and connected matters

    Citation: 2023 LiveLaw (Ker) 463

    In a significant ruling, the Kerala High Court recently held that the tax under the KVAT Act applied not to the transfer of goods but to the transfer of the right to use goods.

    A division bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias CP added that the taxable event occurs when the contract for goods delivery is executed, irrespective of whether the transfer is exclusive.

    "...in a contract for the transfer of the right to use the goods, the taxable event is the execution of the contract for delivery of the goods, and if that has taken place, it was immaterial whether the transfer was exclusively or to the exclusion of all others."

    Electricity Tariff: Kerala High Court Strikes Down Regulation Imposing KSEB Pension Liability On Consumers

    Case Title: Kerala High Tension and Extra High Tension Industrial Electricity Consumers' Association & Ors. v. Kerala State Electricity Regulatory Commission & Ors.

    Citation: 2023 LiveLaw (Ker) 464

    The Kerala High Court has held that electricity tariff charged from consumers will not include the amount allocated to the Master Trust, pension fund of Kerala State Electricity Board employees.

    Single Bench of Justice Murali Purushothaman struck down Regulation 34 (iv) of the the Kerala State Electricity Regulatory Commission (Terms and Conditions for Determination of Tariff) Regulations, 2021 (the Final Tariff Regulations). With this verdict, the electricity tariff shall be reduced by 17 paise per unit for the consumers.

    Kerala High Court Upholds Rape Conviction Of Man Spotted And Identified By Minor Victim In Public Place 1.5 Months After Incident

    Case title: Anil Kumar V State of Kerala

    Citation: 2023 LiveLaw (Ker) 465

    The Kerala High Court held that conviction for rape can be made on the sole testimony of the prosecutrix and no corroboration such as test identification parade would be required if the evidence of the victim was reliable and inspires the confidence of the Court.

    Justice A. Badharudeen observed thus,

    “PW5 [prosecutrix] had enough time to have an imprint of the face and features of the accused, who had subjected her to sexual intercourse, despite her resistance and later identified the accused as the culprit while he was sitting in an autorickshaw, by chance, and later identified him at the dock also. In such a case, there is no reason to disbelieve the identity, as argued by the learned counsel for the appellant, and the said contention is found to be unsustainable.”

    [Bond For Peace Keeping] Show Cause Notice Issued By Magistrate Without Following Mandate U/S 111 CrPC Non-Est: Kerala High Court

    Case title: Ismail Sahib V State of Kerala

    Citation: 2023 LiveLaw (Ker) 466

    The Kerala High Court has held that while issuing summons to show cause under provisions of bond for peace keeping, etc., the Magistrate has to follow the procedure laid down under Section 111 of CrPC.

    Justice A. Badharudeen observed thus:

    “it is the mandate that whenever a Magistrate intents to proceed acting under section 107, section 108, section 109, or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any), required and without furnishing such details, the order will be non-est. Therefore, the order is liable to be set aside.”

    Temple Premises Cannot Be Used For Conducting Mass Drill, Weaponry Training: Kerala High Court

    Case Title: G. Vyasan & Anr. v. State of Kerala & Ors.

    Citation: 2023 LiveLaw (Ker) 467

    The Kerala High Court has directed the Travancore Devaswom Commissioner and the Administrative Officer of the Sarakara Devi Temple to ensure strict compliance of the prohibition on mass drills and weaponry practices in the temple premises.

    The Court issued the above direction in a plea alleging illegal encroachment of Sree Sarkara Devi Temple in Thiruvananthapuram by alleged members of Rashtriya Swayamsevak Sangh (RSS) for conducting mass drills and weaponry training.

    The plea filed by two devotees and nearby residents of the temple averred that such action of the alleged RSS members was causing much agony and difficulty to the devotees and pilgrims visiting the temple, particularly the women and children.

    Calling upon the Station House Officer of the Chirayinkeezhu Police Station as well, to render necessary assistance to the Administrative Officer in the matter, the Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar observed:

    "The temple premises of Sree Sarkara Devi Temple cannot be used for conducting mass drill or weaponry training by the devotees or a group of persons".

    Specific Performance Suit- Parties Can Be Penalized For Delay By Imposition Of Cost, Not By Curtailing Right To Defend: Kerala High Court

    Case name: Vasu v. Narayanan

    Citation: 2023 LiveLaw (Ker) 468

    The Kerala High Court has held that even if an ex parte decree is passed in a suit for specific performance, the Court has to take a liberal view to advance justice by condoning the delay of defendant and affording the party an opportunity to defend the suit.

    Justice P Somarajan observed that a party can be penalized for the delay by imposition of cost but, court should not curtail the party's right to defend the suit for specific performance.

    “In the matter of condonation of absence of party, especially in a suit for specific performance, the court has to take a liberal view so as to advance justice and not to defeat, unless the negligence is so grave to the extent of outweighing the benefit that can be obtained by the party by prosecuting or defending the suit. It is permissible to penalize the party in terms of money for the laches, not by curtailing the valuable right to proceed with the suit or to defend the suit, especially in the matter of specific performance.”

    Kollam Doctor Murder: Accused Sandeep Withdraws Bail Plea From Kerala High Court

    Case Title: Sandeep v. State of Kerala

    Citation: 2023 LiveLaw (Ker) 469

    The bail application moved before the Kerala High Court by Sandeep, sole accused in the brutal murder of the 23 year old house surgeon Vandana Das, was withdrawn.

    The Single Bench of Justice Gopinath P. accordingly dismissed the plea as withdrawn.

    "After arguing for some time, the learned counsel for the petitioner seeks permission to withdraw the bail application. Dismissed as withdrawn," the Court said.

    Kerala Municipality Act | Property Tax To Be Paid Only From Date Of Issuance Of Occupancy Certificate: High Court

    Case Title: M. Baiju v. The Secretary, Kozhikode Municipal Corporation & Anr.

    Citation: 2023 LiveLaw (Ker) 470

    The Kerala High Court recently held that property tax is liable to be paid only from the period of issuance of the occupancy certificate, and not prior to the same.

    The Court reasoned that since tax can only be levied on a building which becomes capable of being used for residential purposes as per Section 233 (2)(a) of the Kerala Municipality Act, 1994, and since it is only on the issuance of occupancy certificate that a building would get numbered and get electricity, water, and gas, tax would hence be leviable from the date of issuance of such certificate.

    Section 233 provides for 'Property Tax', and sub-section (2)(a) defines the buildings on which the property tax can be levied.

    "If subsection 2 (a) of Section 233 is read in proper perspective, it could mean that the tax can be levied on the building which becomes capable of use for residential purposes or other purposes which is defined under Subsection 2(a). It is not in dispute that without occupancy certificate, the building would not get numbered and electricity, water and gas connections would not be provided to such building. If these facilities are not provided, the building does not become capable of being used for residential purposes or other purposes as defined in Subsection 2(a)," the Single Judge Bench of Justice Dinesh Kumar Singh observed.

    Indian Army Can Grant Family Pension To Ex-Serviceman's Second Wife Even If First Marriage Not Legally Dissolved: Kerala High Court

    Case title: N.Sarojini Nambramcheri V Union of India

    Citation: 2023 LiveLaw (Ker) 471

    The Kerala High Court recently held that there was no impediment for the Indian Army in granting family pension to the second wife of a deceased serviceman even if the first marriage was not dissolved legally, as long as the first wife was not interested in the pension.

    Justice Devan Ramachandran observed that the Indian Army could consider the claim of the second wife since their marriage was recognised by the Indian Postal Department. It observed thus:

    “Even if it is taken that the divorce as reflected in Ext.P2 is not legally valid, it would cause no prejudice to the Indian Army, as long as Smt.K.T.Chandralekha does not stake a claim to the family pension. This is more so because, the marriage of late K.V.Venugopalan and the petitioner appears to have been accepted by the Indian Postal Department, which is evident from Exts.P7 and P8, and hence it would only be in furtherance of such that the Indian Army also considers their marriage to be valid.”

    S.227 CrPC | Notarised Affidavit By Complainant Not Sufficient To Discharge Accused: Kerala High Court

    Case Title: Vishnu K.B. v. State of Kerala & Anr.

    Citation: 2023 LiveLaw (Ker) 472

    The Kerala High Court recently held that a notarised affidavit signed by the de facto complainants exonerating the accused person cannot be taken in isolation to discharge the accused.

    Justice N. Nagaresh explained that to discharge an accused person under Section 227 of the CrPC, the Court ought to determine if there are sufficient grounds to proceed against them. If such grounds are found, an order of discharge cannot be passed and the accused would have to face trial.

    "The purpose of Section 227 of the Code is to ensure that the Court should be satisfied that the accusations made against the accused is not frivolous and that there is some material for proceeding against the accused. If there is sufficient ground for presuming that the accused has committed an offence, an order of discharge cannot be passed and the accused has to face trial... A notarised affidavit subsequently signed by the de facto complainants cannot be taken in isolation by the Court so as to discharge the accused."

    Privately Watching Porn Video Without Exhibiting It To Others Will Not Attract Offence Of Obscenity U/S 292 IPC: Kerala High Court

    Case title: Aneesh V State of Kerala

    Citation: 2023 LiveLaw (Ker) 473

    The Kerala High Court quashed criminal proceedings initiated against a man who was arrested by the Police from roadside for watching pornography on his mobile phone.

    Justice P.V.Kunhikrishnan stated that "privately" watching obscene photos or videos on one’s phone without distributing or publicly exhibiting it will not attract the offence of obscenity under IPC. It added that watching such content is a person’s private choice and the Court cannot intrude into his privacy.

    "The question to be decided in this case is whether a person watching a porn video in his private time without exhibiting it to others amounts to an offence? A court of law cannot declare that the same amounts to an offence for the simple reason that it is his private choice and interference with the same amounts to an intrusion of his privacy," Court observed.

    Instead Of Ordering From Swiggy And Zomato, Let Children Enjoy Delicious Food Cooked By Mothers: Kerala High Court Advises Parents

    Case title: Aneesh V State of Kerala

    Citation: 2023 LiveLaw (Ker) 473

    The Kerala High Court emphasized on importance of home-cooked meals for children and advised parents to deter from ordering food from restaurants via online delivery platforms Swiggy and Zomato.

    Justice PV Kunhikrishnan was dealing with a case concerning access to pornography via few clicks of a hand-held mobile phone when he ventured into the arena of modern parenting where children are handed mobile phones so that parents can "complete their daily routine works in their house".

    He implored parents to rather send their children for outdoor activities and welcome them back to home with the "mesmerizing smell of mother’s food". He remarked,

    “Let the children play cricket or football or other games they like during their leisure time. That is necessary for a healthy young generation who are to become the beacons of hope of our nation in the future. Instead of purchasing food from restaurants through ‘swiggy’ and ‘zomato’, let the children taste the delicious food made by their mother and let the children play at play grounds at that time and come back home to the mesmerizing smell of mother’s food. I leave it there to the wisdom of the parents of minor children of this society”

    [Kerala Rent Control Act] Payment Of Arrears During Pendency Of Appeal No Ground For Setting Aside Eviction Order U/S 12(3): High Court

    Case Title: Subeesh v. Vichathran

    Citation: 2023 LiveLaw (Ker) 474

    The Kerala High Court held that payment of the admitted arrears of rent during the pendency of an appeal against an order of eviction under Section 12(3) of the Kerala (Buildings Lease and Rent Control) Act (hereinafter, 'the Act'), would not be a ground to set aside such an order or to grant an opportunity to the tenant to contest the Rent Control Petition.

    Section 12(3) provides that upon the failure of a tenant to pay or deposit the rent or arrears of rent as declared to be paid by the Rent Control Court within a prescribed time period, the Court or the appellate authority, as the case may be, shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building.

    The Division Bench comprising Justice P.B. Suresh Kumar and Justice P.G. Ajith Kumar explained the scope of Section 12 of the Act as follows:

    "The object of the provisions of Section 12(1) of the Act ('Payment or deposit of rent during the pendency of proceedings for eviction') is to deny the defaulting tenant the right to contest the application for eviction before the Rent Control Court or to prefer an appeal under Section 18 of the Act against any order made by the Rent Control Court on an application made by a landlord under Section 11, unless he pays to the landlord, or deposits with the Rent Control Court or the Appellate Authority, as the case may be, all arrears of rent admitted by him to be due in respect of the building, up to the date of payment or deposit, and continues to pay or to deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Rent Control Court or the Appellate Authority, as the case may be. The obligation is not merely dependent on an order under Section 12(1) of the Act, but it is statutory".

    Baptism Certificate Cannot Be Given Primacy Over Official Documents Like Aadhar Card To Ascertain Date Of Birth: Kerala High Court

    Case name: Tony Francis Padiyappuram V State of Kerala

    Citation: 2023 LiveLaw (Ker) 475

    The Kerala High Court has held that baptism certificate cannot be given primacy over official documents like SSLC Certificate, Aadhaar Card, PAN Card and driving license to ascertain the date of birth of a person belonging to Christian community.

    Justice Murali Purushothaman observed thus:

    “A baptism certificate is issued by the Church to record the baptism of a person. No primacy can be accorded to baptism certificate when public documents are available indicating the date of birth.”

    Kerala High Court Directs State To Inform All Registering Authorities That Marriages Can Be Registered Through Video Conferencing

    Case Title: Theresa Davis v. State of Kerala

    Citation: 2023 LiveLaw (Ker) 476

    The Kerala High Court has directed the State Government to inform all registering authorities that marriages can be registered by securing the presence of the parties by video conferencing.

    Justice Devan Ramachandran directed the State Government to comply with the direction within two weeks so that parties would not have to approach the Court each time with the same request.

    “I also deem it necessary to direct the State of Kerala to make sure, through its competent Authority, that all Registering Authorities are informed of the afore precedent through appropriate means, so that parties will not have to approach this Court every time they require the benefits as granted therein. This shall be done in full compliance; and a report to that effect produced before this Court within a period of two weeks from the date of receipt of a copy of this judgment.”

    Kerala High Court Rejects Plea To Erect Saffron Flags At Temple; Says Temple's Sanctity Shouldn't Be Diminished By Political Acts

    Case Title: R. Sreenath & Anr. v. State of Kerala & Ors.

    Citation: 2023 LiveLaw (Ker) 477

    The Kerala High Court recently held that in order to maintain the sanctity and tranquility of the temples, it cannot permit putting up of saffron flags and festoons on temple premises.

    Justice Raja Vijayaraghavan V., while refusing the plea by two devotees of the Muthupilakkadu Sree Parthasarathy temple to permit them to erect flags without any obstruction, observed:

    "Temples stand as beacons of spiritual solace and tranquility, their sanctity and reverence being of paramount importance. Such hallowed spiritual grounds must not be diminished by political maneuverings or attempts at one-upmanship".

    Non-Compliance With Centre's MSME Framework Does Not Nullify An NPA Declaration Under SARFAESI Act: Kerala High Court

    Case Title: N.P. Abdul Nazer v. Union Bank of India & Anr.

    Citation: 2023 LiveLaw (Ker) 478

    The Kerala High Court recently held that the ‘Framework for Revival and Rehabilitation of Micro, Small and Medium Enterprises' issued by the Centre in 2015 is only optional and that its non-compliance does not render an NPA declaration void.

    The said Framework outlines a procedure for banks to follow before declaring an MSME's account as an NPA (Non-Performing Asset).

    Justice Bechu Kurian Thomas added that the Framework does not prevail over the statutory provisions of the SARFAESI Act in the matter of recovery of loans.

    "... failure to abide by the terms of the notification of 2015 cannot render the declaration of the account as NPA void or bad in law. The words in the notification do not provide for a mandatory procedural requirement. No consequence is provided for non-compliance with the Framework... Hence the failure of the Banks to abide by the terms of the Framework cannot be condemned as fatal," the Court observed.

    [Order 32 Rule 15 CPC] Few Irrational Answers Insufficient To Qualify One As Mentally Unfit, Enquiry Should Be Pragmatic: Kerala HC

    Case name: Gopakumar v. Madhusoodanan Nair

    Citation: 2023 LiveLaw (Ker) 479

    The Kerala High Court while considering the scope of the term ‘enquiry’ by the Court under Order 32 Rule 15, observed that the courts cannot merely find a person to be suffering from a mental disorder based on a few irrational answers given by him.

    Justice P. Somarajan added the courts should adopt a more practical approach and seek medical evidence or expert opinion to determine their mental state to decide if they should be represented by a next friend or guardian in a suit.

    “Hence, the court should adopt a pragmatic approach and if it is found necessary, call for further evidence including medical evidence, instead of jumping into a conclusion merely on the ground that some of the answers which were given by the person were found to be not convincing or rational. The procedure, then available, is to refer the parties to a Medical Board so as to obtain a report regarding any mental ailment, retardation or disorder or any impairment of mental ability to take a rational decision pertaining to his affairs or to protect his interest.”

    'Punishment Before Conviction Anti-Thesis Of Rule Of Law': Kerala High Court Grants Bail To Managing Director In Popular Finance Scam

    Case Title: Thomas Daniel v. Enforcement Directorate & Ors.

    Citation: 2023 LiveLaw (Ker) 480

    The Kerala High Court granted bail to the Managing Director of Popular Finance, Thomas Daniel, who is alleged to have committed offences under the Prevention of Money Laundering Act, 2002 (PMLA).

    Daniel had been accused of cheating several depositors by collecting fixed deposits without authority, after promising to pay interest and thereafter failing to pay the interest and the amounts collected. It was further alleged that amounts so collected by Daniel were used as untainted money for the acquisition of property. He was thus alleged to have committed the offence of money laundering under Section 3 of PMLA.

    Justice Bechu Kurian Thomas observed that when there is only a remote possibility of conviction sometime later in the future, the liberty of the individual must be given preference.

    "The constitutional courts are entrusted with the solemn function of protecting the liberty of the individual, which manifests as fundamental rights. Punishment before conviction is the antithesis of the rule of law. When the liberty of an individual is pitted against the remote possibility of a conviction much later, the scales of balance must lean in favour of the former".

    S.24 PMLA | No Presumption Of Guilt Of Accused For Predicate Offences Alleged Against Him: Kerala High Court

    Case Title: Thomas Daniel v. Enforcement Directorate & Ors.

    Citation: 2023 LiveLaw (Ker) 480

    The Kerala High Court on Thursday made a seminal observation that the Prevention of Money Laundering Act (PML Act, 1992) does not stipulate presumption of guilt of accused for the predicate offences alleged against him.

    The Court made the afore observation while granting bail to the Managing Director of Popular Finance, Thomas Daniel, who is accused of committing various offences under the PMLA.

    The Single Judge Bench of Justice Bechu Kurian Thomas noted that while registration of an FIR for predicate offences by itself would be sufficient to attract the offence of money laundering under the PMLA, in Vijay Madanlal Choudhary vs Union of India [2022 LiveLaw (SC) 633], the Apex Court had laid down that if the predicate offences are quashed, or the accused is discharged, or the predicate offence is not made out, the offence under the PMLA would not lie.


    Res Judicata | Civil Court Cannot Grant Liberty To File Fresh Suit On Same Cause Of Action While Drawing Decree On Merits: Kerala High Court

    Case Title: Karlose v. Stella Lasar & Ors.

    Citation: 2023 LiveLaw (Ker) 481

    The Kerala High Court recently declared that it would be impermissible for a civil court to grant liberty to file a fresh suit on the same cause of action while drawing a decree on its merits, or to remove any statutory bar in instituting a fresh suit on the same cause of action.

    Justice P. Somarajan, explained that liberty to file a fresh suit could be granted only under Order XXIII Rule 1 and 2 C.P.C., when an application is submitted under that provision seeking permission to withdraw the suit.

    Hepatitis-B Patients Can't Be Denied Civil, Public Employment: Kerala High Court Seeks Protocols Against Discrimination

    Case Title: Shaik Zakir Ahmed v. Fertilizers and Chemicals Travancore

    Citation: 2023 LiveLaw (Ker) 482

    The Kerala High Court has recently held that a person cannot be denied employment opportunities in the civil or public sector merely on account of Hepatitis- B or HIV infection.

    Justice Devan Ramachandran declared that the denial of employment to an infected person was discriminatory and that such practice in this era shocks the collective conscience of the society.

    “One can certainly not countenance, particularly in this age and time, that a person be kept out of Civil/Public employment solely because he is suffering from “Hepatitis B” or “HIV” infection. This is contrary to ethos of the times and militates against the collective conscience of the civilized world.”

    Order VIII Rule 6 CPC | Can't Reject Counter Claim If Omissions Pointed Only At Appellate Stage, Not During Trial: Kerala High Court

    Case title: Anil Kumar V Sunil Kumar

    Citation: 2023 LiveLaw (Ker) 483

    The Kerala High Court has held that counterclaims have to be filed in accordance with the procedure prescribed under Order VIII Rule 6A-6G of CPC and any omissions in form and content of counterclaims has to be pointed by the opposite party at the trial stage itself.

    Justice A. Badharudeen observed that if the omissions in counterclaims are pointed out at the appellate stage after the trial, then it will not be grounds to reject the counterclaims and such omissions shall be ignored by the Appellate Court.

    “It is true that when the statute mandates the form and content of a counter-claim, the counter-claim shall be in the said format and any omission in complying the rules in the form and content of the counter-claim, that should be raised before the trial court by the adverse party so as to get the defect cured, since the same is a curable irregularity. If omissions of such a nature are pointed out after a full-fledged trial before the first or second appellate court, the same shall not be a ground to reject the counter-claim and such omission to be ignored in the interest of justice.”

    Hereditary Trustees Can Be Employed In Temples Upon Relinquishing Trusteeship: Kerala High Court

    Case Title: Hariharan P v. Malabar Devaswom Board & Ors

    Citation: 2023 LiveLaw (Ker) 484

    The Kerala High Court ruled that a hereditary trustee or a member of the family with a hereditary right of trusteeship is not barred from being appointed as an employee in the temple as long as they relinquish their claims to trusteeship before applying.

    A division bench of Justice Anil K Narendran and Justice P.G Ajithkumar discussed the social reality that hereditary trusteeship often does not provide financial security, leading individuals to seek employment in the temple, and pointed out that there is no legal bar under the Hindu Religious and Charitable Endowments Act for hereditary trustees or their family members to apply for temple employment.

    "For many, hereditary trusteeship is just an ornamental post, and often then not it would not save one from even starvation. In such cases, it may be totally unjust and inappropriate to deny one from applying for an employment in a temple for the reason that he is or may have a chance on a remote future to become a hereditary trustee of the temple. No doubt, if there is a provision in the statute denying such a right, that will hold the field. There is no such provision in the HR&CE Act. In such circumstances, if a hereditary trustee abandons his right to continue, cannot be denied his right to apply for an employment in the temple."

    Kerala High Court Quashes Sexual Harassment Case Against Actor Unni Mukundan Based On Settlement Between Parties

    Case Title: Unni Mukundan v. State of Kerala

    Citation: 2023 LiveLaw (Ker) 485

    The Kerala High Court quashed the proceedings against Malayalam film actor Unni Mukundan where he was facing prosecution for offences under Sections 354 (Assault of criminal force to woman with intent to outrage her modesty) and Section 354-B (Assault or use of criminal force to woman with intent to disrobe) of the IPC, based on a settlement between the parties.

    Justice P. Gopinath observed thus:

    “The learned Counsel appearing for the petitioner would submit that the entire issue between the petitioner and the de facto complainant have been settled. It is submitted that at the instance of the petitioner certain complaints were filed against the de facto complainant and those proceedings have also been terminated on the ground of settlement between the petitioner and the de facto complainant. It is submitted that the this is a fit case where the further proceedings against the petitioner can be terminated on the ground of settlement.”

    Second Appeals Can't Be Admitted On Equitable Grounds Merely To Refer Parties To Mediation: Kerala High Court

    Case title: Gokuldas V Gopalakrishnan

    Citation: 2023 LiveLaw (Ker) 486

    The Kerala High Court recently held that a Court cannot admit and maintain a second appeal merely to refer parties to mediation, if there is no substantial question of law involved in the second appeal.

    Justice A. Badharudeen observed that a second appeal shall not be heard on equitable grounds and reiterated that it is mandatory to formulate substantial questions of law.

    “The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of CPC, the Court shall formulate substantial question/s of law, and the said procedure is mandatory.”

    Kerala High Court Asks Govt To Issue Necessary Health Advisories To Sabarimala Pilgrims Amid Nipah Virus Outbreak In Kozhikode

    Case Title: Suo Moto v. State of Kerala

    Citation: 2023 LiveLaw (Ker) 487

    Amid outbreak of Nipah virus in Kerala's Kozhikode, the High Court has directed the Health Secretary to issue advisories, if necessary, to Sabarimala Pilgrims visiting the temple during Kannimasa Pooja.

    Total virtual queue booking for the pooja from September 17 has already reached 34,860.

    The Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas was hearing a suo moto case registered on the report filed by Sabarimala's Special Commissioner, calling for advisories from the Directorate of Health Services.

    Other Significant Developments This Week

    Govt Funds For 'Noon-Meal Scheme' Inadequate, School Headmasters Forced To Take Personal Loans: Plea In Kerala High Court

    Case Title: Kerala Pradesh School Teachers' Association & Ors. v. State of Kerala & Anr.

    Case Number: W.P.(C) 29565/ 2023

    The Kerala Pradesh School Teachers' Association and the Headmasters of certain government and aided schools have approached the Kerala High Court seeking a direction to the Director of General Education to absolve the Head Masters from the responsibility of running the 'Noon Meal Scheme' and to entrust the same with an independent agency.

    The noon-meal scheme was introduced by the Government for students upto Grade VIII in Government and Aided Schools in the State. The plea is filed in light of alleged untimely and inadequate disbursal of funds under the scheme.

    Food Packing In Plastic Containers Raise Serious Public Health Concerns: Kerala High Court Seeks Response From Food Safety Commissioner

    Case Title: Nebu Thomas Cherian, Proprietor Anna Polymers v. State of Kerala & Ors.

    Case Number: WP(C) 25246/2023

    The Kerala High Court has sought the response of the Commissioner of Food Safety on a plea drawing the attention of the Court to the quality and nature of the packing materials being used in the State for serving food articles.

    The plea was filed seeking action to be initiated on the use of plastic, uncoated papers and newsprints for packing food articles at restaurants.

    The Single Bench of Justice Devan Ramachandran took serious note of the issue, and observed that,

     "The lives of citizens will be rendered in peril if the materials used for packing food articles are not properly monitored and supervised, especially when plastics are put to use for such purpose".

    CMRL Bribery Case: Kerala High Court Says Can't Probe CM Pinarayi Unless Allegations Disclose Prima Facie Offence Under Corruption Act

    Case Title: Gireesh Babu v. State of Kerala & Anr.

    Case Number: Crl. Rev. Pet. 890/ 2023

    The Kerala High Court orally observed that it cannot order a probe against Chief Minister Pinarayi Vijayan in connection with the CMRL bribery case, unless the allegations against him disclose a prima facie offence under the Prevention of Corruption Act.

    CM Pinarayi's daughter Veena Thaikandiyil is the prime accused in the case. It is alleged that she received kickbacks through her company Exalogic Solutions in connection with the mining and other business interests of the Cochin Minerals and Rutile Ltd (CMRL).

    Justice N. Nagaresh was hearing a revision petition filed against dismissal of a complaint in this regard. Thea plea sought to probe high ranking public officials of the State including the CM, leader of the Opposition and Congress MLA Ramesh Chennithala, MLA Kunhalikutty, former Minister for Public Works V.K. Ibrahim Kunju, and A. Govindan.

    Bank's Failure To Provide Insurance Policy Despite Deducting Premium 'Unfair Trade Practice': Kerala Consumer Forum Orders Compensation

    Case Title: George V.T. v. Branch Manager, Canara Bank, Ayappankavu

    Case Number: C.C. No.245/2022

    The District Consumer Disputes Redressal Commission at Ernakulam has ordered the Canara Bank to compensate a customer for its failure to provide insurance coverage and certificate to him, despite deducting the premium for the same.

    The Bench comprising President D.B. Binu and Members V. Ramachandran and Sreevidhia T.N. observed,

    "The actions of the opposite party, i.e., their assurance of providing insurance coverage and a certificate, coupled with their subsequent failure to fulfil this promise despite deducting the premium, signify a clear deficiency in service and unfair trade practice. This deficiency in service has led to the complainant's inability to claim cashless benefits for medical expenses incurred, resulting in substantial hardship and emotional distress."

    [Noon Meal Scheme] Kerala Govt Cites Dispute With Centre Over Funds, Assures High Court To Clear Arrears Soon

    Case Title: Kerala Pradesh School Teachers' Association & Ors. v. State of Kerala & Anr.

    Case Number: W.P.(C) 29565/ 2023

    The Kerala government today assured the High Court that arrears of payments to government and aided schools under its 'Noon-Meal Scheme' will be cleared soon.

    Government pleader informed the High Court that the issues between the Centre and the State with respect to the funds have been resolved and hence, payments will be made soon.

    Single Judge Bench of Justice T.R. Ravi in its order today recorded,

    "The GP has placed before me an Order dated 13.09.2023 issued by the Govt wherein it is stated that a sum of Rs. 81,57,73,500/- being the 50% share of the State in the total amount of 1631514000/-, has been deposited into the account of the Director of General Education. It is further stated by the GP on instruction that the entire amounts payable will be paid off since the issues between the State and the Centre has almost been resolved. The above submission is recorded."

    'Entire Evidence Cooked-Up': Kapil Sibal Argues For Lakshadweep MP In Kerala High Court Seeking Suspension Of Conviction & Sentence

    Case Title: Sayed Mohammed Noorul Ameer and Ors. v. U.T. Administration of Lakshadweep

    Case Number: CRL.A 49/ 2023

    The Kerala High Court has commenced re-hearing on the suspension of conviction and sentence of Lakshadweep MP Mohammed Faizal and three others in a case of attempt to murder. The matter was recently remanded back to the High Court for reconsideration by the Supreme Court.

    The re-hearing of the matter commenced before Justice N.Nagaresh.

    Kerala High Court Directs Counselling Of Parents, Sibling Of 21-Yr-Old Trying To 'Find Her Proper Gender Identity'

    Case Title: XXX & Anr. v. Station House Officer & Ors.

    Case Number: W.P. (Crl.) 903/ 2023

    The Kerala High Court directed the counselling of the parents of a 21-year-old individual, who is seeking help from a Community Organisation to find her real 'gender identity'.

    The Division Bench comprising Justice Anu Sivaraman and Justice C. Jayachandran directed that the family be sensitized about Transgender persons by an expert, to be identified by the District Legal Services Authority, Alappuzha.

    "Having interacted with the petitioners and their children, we are of the opinion that the petitioners also require a counselling to accept the factum of the different gender identity, which the alleged detenue seeks to express. We therefore direct the Secretary, DLSA, Alappuzha to take appropriate steps to identify a proper person for interaction and counselling with petitioners for the specific purpose as stated above," the Court ordered.

    State Obligated To Maintain Confidentiality Of HIV Patients Availing Govt Schemes, Right To Privacy Constitutional Guarantee: Kerala High Court

    Case Title: XXX v. State of Kerala & Ors.

    The Kerala High Court has sought the response of the State government on steps taken to ensure that confidentiality of persons infected with HIV is not prejudiced while availing the benefits of a Government Order granting them Rs. 6,000/- largesse every 6 months.

    Justice Devan Ramachandran observed that since right to privacy is a constitutional guarantee, the government is obligated to ensure that the confidentiality of such persons is maintained at every stage.

    "There can be no doubt at all that the requirement of maintenance of confidentiality of the information related to persons like the petitioner is paramount and unassailable...specific safeguards have to be put in place. It is not sufficient that Government has issued Ext.P1 [GO]; but for its implementation, specific modus and protocols have to be made, for the reasons already said above," Court observed.

    Plea In Kerala High Court Challenges Appointment Of IAS Officer B Ashok As Agricultural University's Vice Chancellor

    Case Title: Dr Rejil T V The Chancellor, Kerala Agricultural University

    Case number: WPC No. 29750 of 2023

    The Kerala High Court has issued notice on a writ petition questioning the qualifications of IAS officer Dr B Ashok who was appointed as the Vice Chancellor of Kerala Agricultural University earlier this year.

    The plea has been moved by a member of the General Council of the University, stating that Dr Ashok does not possess the requisite qualifications prescribed by the UGC for holding the post of Vice Chancellor.

    The Agricultural Production Controller was given full additional charge as the University's VC with effect from March 01, 2023 at directions of Chancellor, Governor Arif Khan.

    Bench of Justice T R Ravi has issued notices to Khan, Pro-Chancellor and Minister of Agriculture P. Prasad, Registrar of the Kerala Agricultural University and the Principal Secretary to State's Agricultural and Farmers Welfare Department.

    Plea In Kerala High Court Opposes Construction Of Toilet Block In Lord Ayyappa Temple Compound

    Case Title: P.N. Sreeraman v. The Secretary & Ors.

    Case Number: W.P.(C) 24711/ 2023

    A plea has been moved in the Kerala High Court challenging the construction of a toilet block as part of the 'Take a Break' scheme on the Devaswom land of Ayyappan Kavu Temple, Cherpulassery.

    The agreement entered into between the Cheruplassery Municipality Secretary and Temple's Managing Trustee also provided that the operation and maintenance of the 'Take a Break' centre shall be vested with the Municipality, which can take assistance from Kudumbashree workers.

    Petitioner, a devotee of the Temple, apprehends that entrusting the temple land to the Municipality will result in encroachment of the temple property for other public purposes than the temple necessities.

    "The entire temple ground is utilizing for the purpose of all temple festivals. Now the act of the respondents by the constructing the public toilets in the temple properties permitting the Beneral publie for using the same will cause the damage to the faith and belief of the devotees and the customs and the rituals prevailed to the temple," the plea states.

    A Division Bench comprising Justice Anil K. Narendran and Justice Sophy Thomas was informed that toilet blocks were being constructed in other temples also, with permission from the Devaswom Commissioner. It was averred that toilet facilities in Cherpulassery Temple were insufficient.

    Kerala District Judiciary Proposes To Change Sitting Time Of Courts

    A proposal to change the sitting time of courts in the District Judiciary of Kerala is currently underway.

    The sitting time of courts in the District Judiciary is prescribed under Rule 9 of the Kerala Civil Rules of Practice (not later than 11:00A.M. - not before 5:00 P.M.) and Rule 5 of the Kerala Criminal Rules of Practice (10:30 A.M. - 5:00 P.M.).

    Farmers' Plea In Kerala High Court Seeks Judicial Intervention To Revamp Paddy Procurement System

    Case number: K Mohanan V State of Kerala

    Case title: WPC No. 30251 of 2023

    The Kerala High Court has directed the government to consider the grievances of paddy cultivating farmers in Palakkad district, seeking to revamp and improve the procurement system in the State.

    Justice Devan Ramachandran has directed the Competent Secretary of the Government to look through the petitioners' complaints "very carefully" and file a report indicating as to what action has been taken and what is proposed.

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